Healthcare | A promising lawsuit against Obamacare has brought Virginia Attorney General Ken Cuccinelli-and his Madisonian outlook-into the public eye

"Opposing counsel" Continued...

Ken Cuccinelli laces up the black Reebok shoes he just bought at a Dick's Sporting Goods in Richmond, Va. He found the $40 pair of shoes hidden in a row of $80 shoes. Despite this deal, he claims they are the most expensive pair of athletic shoes he has ever owned.

The attorney general of Virginia is readying to take the court, but not the one you might think. Tonight, Cuccinelli, 42, is facing off with members of the Virginia General Assembly at a basketball gym near the city's Capitol Square. And he's a little nervous, mostly because he didn't have the best pregame meal-a couple of McDonald's hamburgers washed down with sweet tea. "It is not the smartest thing I've done today," he admitted. "I don't usually do two of those in a day."

Wearing a red Roanoke Tea Party T-shirt, Cuccinelli, with dark eyes and dark hair atop a frame that remains thin despite his fast food choices, warms up with a couple of air balls before sinking two shots in a row. "I'm done," he says.

When the game starts, Cuccinelli, who spent more than a dozen years refereeing youth basketball, is not too afraid to take risky shots. In three out of the four games tonight, he takes the game's opening shot. His team finishes with a 4-0 record after he sinks the game-winning shot in the final contest. "Cuccinelli knows how to close it out," one of the players shouts.

It's nearly 9 p.m. on Jan. 25, and President Barack Obama is about to give his State of the Union speech. Cuccinelli merely glances at a television screen while exiting the gym. It is time for him to head home: two hours away in a Northern Virginia suburb of Washington, D.C.

Cuccinelli's first year as attorney general ended about a month ago, and it was a little like his evening basketball game in Richmond. He did not waste time easing himself into his new position, and his fearlessness in taking on the federal government brought instant controversy. (He jokes that the swearing at him began the day after his swearing in.) But the year in office has made him one of the nation's highest-profile attorneys general. "We have not been bored," he admits.

Last February, Cuccinelli filed a legal petition to the Environmental Protection Agency-an organization he likes to call the Employment Prevention Agency-asking it to reconsider its decision to regulate certain emissions and questioning its global-warming findings.

Then on March 23, the same day that 235 years earlier another Virginian in Richmond named Patrick Henry uttered the words, "Give me liberty or give me death," Cuccinelli filed suit to stop the new federal healthcare law. The attorney general argued that the law's individual mandate to force everyone to buy insurance or face penalties violates the U.S. Constitution. Healthcare supporters called the lawsuit frivolous. But in December a federal judge from Virginia thought otherwise, ruling in favor of Cuccinelli and striking down the mandate that many consider the overhaul's tent pole.

Cuccinelli makes no apologies for his aggressiveness. He argues that the nation is in the midst of the "greatest erosion of liberty in my adult lifetime." His state, he says, is "not a wholly owned subsidiary of U.S. Congress, Inc."

Attorneys general from around the nation seem to agree: Twenty-six states filed a similar suit against the new healthcare law, and on Jan. 31 a Florida judge delivered a bombshell ruling when he sided with those states and declared the entire law unconstitutional.

With the Feb. 2 legislative defeat of congressional healthcare repeal efforts in the U.S. Senate, the focus of the fight against Obamacare is shifting to the nation's courts. Cuccinelli now is asking the Supreme Court to waive the normal appeals process and fast-track his Virginia healthcare lawsuit. While the other states banded together, he decided to have Virginia go after Obamacare alone. As a result, he is fast becoming the face of the healthcare debate.

This makes Cuccinelli a hero to some but a villain to others. Why fly solo against the federal government? The answer likely is found in his love of history. He calls Virginia the perfect place, thanks to its rich history, for defending the Constitution. "This lawsuit is about liberty, not healthcare," he says. "If they can order you to buy this, they can order you to buy anything. Frankly, the federal government ought to be knocked back here. It has overstepped its boundaries."

Cuccinelli was tea party long before there was a Tea Party. He grew up reading about Revolutionary War heroes and now comfortably refers to James Madison's Federalist Papers as if they were written yesterday. He says that by being Washington's foil, he is only doing what Madison intended-providing the institutional tension between state and federal governments that keeps both powers in check. On a recent cold Monday morning in Richmond, Cuccinelli stood before a "proclaiming Christ in the heart of the city" banner and addressed a room full of Christian students visiting the state capitol.

Inside Saint Paul's Episcopal Church at Capitol Square, a place where Confederate President Jefferson Davis was a member during the Civil War, it didn't take long for Cuccinelli to explain the present by delving into the past: "The king of Great Britain that we rebelled against acknowledged that he didn't have the authority to make the colonists buy British goods," he lectured the students. "But our president and the last Congress think they can. The power of the federal government after the American Revolution and the Constitution was less in all respects than the British Parliament. Otherwise, why rebel?"

Cuccinelli's conviction in these principles began during his own high-school days while attending a private Jesuit school in Washington, D.C. There lots of reading gave him clear ideas of what government should and shouldn't do. (He didn't only study: Cuccinelli, who says he has "a whacky side," spent time in costume as the school's eagle mascot. Nowadays he hosts annual fundraisers at a paintball course, and his "Don't Tread on Me" baseball cap sports numerous paintball stains.)

At the University of Virginia, the attorney general seemed to reject a career in politics by becoming an engineering major. But he served on the university's judiciary committee for three years. The experience of helping to govern the students led him to law school.

As a lawyer Cuccinelli worked pro bono on hundreds of mental healthcare cases. Still he nourished his passion for politics: volunteering to put up signs during elections, collecting inch-thick files on topics like school choice, and developing his recruiting pitch. Soon he became the Republican membership chair for his Northern Virginia county. But he always assumed that would be as far as he would go politically.

His wife, Teiro, had bad memories of the time her mother ran for a county board seat, and her disdain for politics made Cuccinelli reluctant to discuss the topic.

Then one night in April 1999, Cuccinelli came home from work late.

"Guess what I did at the grocery store today?" Teiro asked. "I signed somebody's petition to run for office."

Taken aback, Cuccinelli asked her for the name of the candidate. When she responded, Cuccinelli exploded: "He is pro-tax. He breaks his word. He backstabs pro-lifers!" he recalls ranting.

Then out of the blue Teiro said: "Well, why don't you run against him?"

After Cuccinelli overcame his shock, he did some research and found that the deadline to file a petition to enter the race had passed just four hours earlier. "I missed that. But I started planning for the next race."

Having paid his dues as a recruiter gave Cuccinelli a wealth of local contacts. Those relationships, his pro-life position, and a lot of miles on a 20-year-old Isuzu Pup to plant signs all over the county helped him eke out a GOP primary win in August 2002 by a mere 104 votes. In the general election Cuccinelli won again, despite being outspent by more than 2-to-1. At 34, he became a freshman state senator. Serving for eight years, he would go on to win even closer races-gaining reelection in 2007 by a margin of just 98 votes out of 37,000 cast.

Despite tight elections, Cuccinelli did not apologize for being a conservative Republican from traditionally liberal Northern Virginia. In the Senate he quickly bemoaned the fact that many of his fellow Republicans seemed to favor big government aggressively. He became known for the many 39-to-1 votes in which he was the lone dissenter. His personal favorite: trying to remove $100,000 earmarked for the budget committee chairman's district and replacing it with $100,000 for the brain injury foundation.

"It is more tiring to fight with the people who are supposed to be on your team than it is to fight with people who are supposed to be your opponents," he said. "But by the end, I was giving as good as I got. I don't mind knife fights. As long as the knives come from the front."

When he ran for attorney general in 2009, newspapers like the Virginian-Pilot bashed his conservative morality, warning that he would be an "embarrassment" to the state if elected. But he won by a sizeable 18 percentage points in November 2009-one of the early indicators of the larger conservative victory to come one year later.

"I recognize that the founders built this nation on the foundation of natural law," Cuccinelli said when talking about his conservative crusades. "The Founding Fathers would have never believed that you would debate abortion or that you would debate marriage."

He calls himself a cradle Catholic, having been raised in the faith. But four years into his marriage Cuccinelli and his wife had a significant reawakening. Their exploration, spurred on by the mother's group his wife joined at their church, led to what he calls the "most important change in either of our lives." Faith became their top priority.

That led to a passion for protecting family values that has, ironically, led him to spend long hours away from his own family. The couple has seven children ages 1 to 15, including 5 daughters. Wanting to remain near both their older daughters' schools (the younger ones are homeschooled) and their church, Cuccinelli and his wife decided to stay in Northern Virginia.

That is why, roughly two hours after the end of his basketball game, with the clock nearing 11 p.m., Cuccinelli is finally turning into his family's rural neighborhood in Prince William County.

"Oh my gosh, tonight's a trash night," he exclaims after noticing that all the other houses have the cans already pulled to the end of driveways. "All right girls, way to go," he adds after seeing that his own cans have been rolled down the long driveway that leads to the home on his 10-acre plot.

His wife is there to greet him at the door. At least one child is still awake, waiting behind the curtains to hug her father. Cuccinelli will head back to Richmond at 7:30 the next morning.

"We are not doing this for fun," he tells me before disappearing inside. "We are fighting."